Critics of Rail Yard Prepare for Battle

By Tim Thornton tim.thornton@roanoke.com 381-1669

Mickey Apgar doesn’t like to speak to crowds, but the Elliston resident hopes he’ll be talking in front of a big group at Monday evening’s Montgomery County Board of Supervisors meeting.

Apgar, a lifelong county resident who worked at his family’s store on U.S. 460, has been appointed spokesman for Citizens for Preservation of Our Countryside, a group opposed to Norfolk Southern’s plan to build an intermodal rail freight yard in Eastern Montgomery County.

The new group wants the supervisors to pass an ordinance that would be highly unusual for a local government in Virginia — or elsewhere. It could join the county to what some call a national movement to restrict corporate power. In this case, the ordinance would strip corporations of certain rights within the borders of Montgomery County — including the right to force people to sell their land. Norfolk Southern has threatened to use its state- granted power of eminent domain to acquire land for an intermodal yard.

“I’ll be there just to voice the concerns to the board about the intermodal thing and to try to convince them to look at this proposal and pass it,” Apgar said.

The ordinance was created by the Community Environmental Legal Defense Fund, a Pennsylvania-based group that’s waging a nationwide battle against the established legal convention that corporations have the same rights as people. In Virginia, legal defense fund executive director Thomas Linzey argues, the state has gone even further, giving some corporations the right of eminent domain, a power most Virginians don’t have.

That, Linzey says, violates the state constitution, which prohibits giving any person special privileges. University of Virginia law professor A.E. Dick Howard, who helped write the state’s constitution and is a nationally recognized constitutional scholar, called Linzey’s argument an interesting question. But Howard said last week that he didn’t see how an ordinance could address that.

“The ordinance seems to be beside the point, somehow,” Howard said.

The state can’t simply turn its power and authority over to a private concern, Howard said. But it can delegate authority as long as the state maintains some control or oversight.

“That would be a legitimate question of whether the state has abdicated its power” by allowing Norfolk Southern to use eminent domain, Howard said. “I think you’d have to go to court to challenge that.”

Linzey’s approach is almost the opposite. He wants localities to pass ordinances, then wait for corporations to challenge them. Though he builds his arguments on the Declaration of Independence and state and federal constitutions, Linzey said he doesn’t really expect to win many legal battles. In Pennsylvania, where dozens of localities have adopted ordinances similar to the one the citizens group is advocating for Montgomery County, a federal judge’s opinion pointed out Linzey’s disregard for “established constitutional law” and called it a close question as to whether Linzey should be sanctioned for some of the arguments he brought to the court.

Linzey’s goal is to win in the court of public opinion — through a change of philosophical venue. He wants to move arguments about corporations and communities from legalities to bedrock principles.

Should a corporation headquartered in Norfolk decide what Elliston is like, he asked at one of the citizens group’s first meetings last month. Or should people who live in Elliston decide?

Gov. Tim Kaine and Norfolk Southern officials announced in May that an intermodal freight terminal would be built near Roanoke. Virginia has committed to pay more than $22 million toward the facility’s construction and toward the railroad’s Heartland Corridor that it would serve. Norfolk Southern is expected to contribute $9.6 million.

It became clear in June that the company had settled on a site in Elliston.

After Montgomery County residents and officials opposed the plan, the state asked the railroad and local governments from Montgomery County to Botetourt County to propose alternative sites.

Norfolk Southern made 10 suggestions. No governments submitted any proposals.

The Heartland Corridor is meant to cut travel time for trains carrying double-stacked containers between Hampton Roads ports and the Midwest.

Although state officials have said the corridor could take 200,000 trucks off the road, Norfolk Southern has said the project won’t reduce truck traffic on Interstate 81. It could even add a few trucks to the highway’s load.

Montgomery County’s supervisors have voted twice to oppose the Elliston site. Botetourt County supervisors oppose the two potential sites in their county. But the railroad can take land through eminent domain, and federal law exempts the company from local land- use ordinances.

That is why many eastern Montgomery County residents think Linzey’s ordinance is worth a try.

Apgar said he’s been trying to build support among his neighbors.

“I tell them this thing’s not a silver bullet,” he said. “It might not do any good. It might help.”

Gary Creed, who represents Elliston on the board of supervisors, said he doesn’t know because he hasn’t seen the ordinance. Linzey, Shireen Parson, who is the legal defense fund’s Virginia organizer, and members of the citizens group have refused to show the ordinance to anyone before Monday’s meeting. Rich Rittenhouse, a leader of the local group, said last week that he hadn’t seen the ordinance yet. He’s seen a summary and said he trusts Linzey to get the legalese right.

A similar ordinance presented to Campbell County supervisors last month needed a little work.

J.D. Puckett, chairman of the Campbell County board, said Friday it didn’t look like any ordinance he was accustomed to reading.

Campbell County Administrator David Laurrell agreed. “It is much more of a statement of rights than an ordinance,” he said.

But the county’s lawyer and the attorney for Citizens Against Toxic Sludge, a Campbell group, are redrafting it. Laurrell said the board plans to hold a public hearing on the ordinance in April.

A similar ordinance is under review by the Bedford County planning commission.

The Campbell and Bedford ordinances are aimed at stopping the spreading of sewage sludge, but they share a core element with the Montgomery County proposal: They all seek to limit corporate rights.

Apgar said he understands the ordinance he’ll speak for Monday seems a long shot. But he thinks it’s a shot worth taking. Everyone rooted in Elliston is against the rail yard being built there, he said. And they appreciate the supervisors’ support.

“We’re thanking them for backing us,” Apgar said. “And we’re backing them, too.”

INTERMODAL SITE BY THE NUMBERS $22.5 million

What the state plans to pay for the project $9.6 million

What Norfolk Southern is expected to pay 67,000

Maximum weight in pounds of a container and cargo 40,000

Number of containers moved onto or off trains last year at the Inland Port in Front Royal, est. in 1989. 15,000

Annual minimum number of containers new site will need to handle by its 15th year to keep state funding 1,000

Minimum number of containers the new intermodal site is projected to move onto or off trains during its first year of operation 12

Number of jobs expected at the new site

(c) 2007 Roanoke Times & World News. Provided by ProQuest Information and Learning. All rights Reserved.